EDITORIAL: Overturn ‘Korematsu’ for good

The United States Supreme Court has an opportunity to settle once and for all the illegality of the internment of Japanese Americans during World War II. It has the opportunity to help ensure that it never happens again.

The issue is being attached to a lawsuit that was filed against the Obama Administration and members of Congress by journalist Chris Hedges and others in January 2012.

Hedges v. Obama challenges the National Defense Authorization Act (NDAA), which permits the U.S. government to indefinitely detain people “who are part of or substantially support Al Qaeda, the Taliban, or associated forces engaged in hostilities against the United States.” What’s that got to do with the Japanese internment? Read on.

The NDAA wording seems harmless enough, but Hedges felt it was vague and could include journalists, activists, and human rights workers who may simply be exercising their First Amendment rights. Might a journalist who interviews a critic of the Obama Administration be seen as giving support to terrorists or “associated forces?”

Hedges and his co-plaintiffs focus on the NDAA provision that states “existing law and authorities relating to the detention of United States citizens” would not be affected by the law. He raises the example of the Korematsu v. United States ruling in 1944, which remains among the “existing law and authorities” relating to military detention of U.S. citizens.

Although Fred Korematsu’s conviction was finally overturned in 1983, the constitutionality of the detention of Japanese Americans was not. Despite the Department of Justice’s 2011 concession that the decision was “in error,” it remains an “existing law and authority.”

The ruling needs to be removed, because, as Supreme Court Justice Anontin Scalia told University of Hawaii law students a few weeks ago, referring to the internment, “You are kidding yourself if you think the same thing will not happen again.”

Unfortunately, the Obama Administration is on the wrong side of history. Responding last week to a letter from Hedges sent to the Solicitor General, in which he asks, “Should Korematsu be overruled?” the Administration “chose not to support a years-long campaign to get the Court to repudiate one of its most heavily criticized opinions from the World War II era,” reported Lyle Denniston at SCOTUSblog, a website that extensively covers the U.S. Supreme Court.

Hedges v. Obama is not specifically about Korematsu v. United States. But now that Chris Hedges brought it up, the Court has an opportunity, as well as a moral obligation, to overturn it. (end)